This document is at http://www.rogerclarke.com/DV/OpEd-RoA-110727.html

During the last three years, the federal, NSW and Victorian Law Reform
Commissions have all concluded that a statutory tort is necessary to deal with
aspects of privacy that are currently unprotected in Australia.

Previous attempts at a reasoned discussion of the proposals have been thwarted
by firestorms unleashed by media outlets. On 21 July, the federal government
took the opportunity provided by widespread revulsion at phone-hacking by
journalists in the UK to announce a discussion paper to build on the 2008
Report of the Australian Law Reform Commission (ALRC).

The Australian media reacts with vitriol when they judge, or just imagine, that
their freedom to gather and publish information is under threat. The News
Limited stable often leads the charge, and this week has filled pages with
articles on the Government's proposal and loosely related topics.

Regrettably, the quality of some of those articles has been much lower than the
public expects from a leading broadsheet. This Opinion Piece identifies
several serious misrepresentations that are being made by multiple media
outlets and individuals, but particularly by News Limited organisations.

A primary misrepresentation is that the tort is targeted at the media:
"Labor's tort is aimed at traditional media companies" (Stutchbury, 26 July)
and "the [ALRC's] plan for a new way of suing the media over privacy" (Merritt,
27 July).

Yet, in discussing the scope of the right of action, the ALRC, at multiple
points, makes clear that the scope is very wide. For example, "the types of
acts or conduct that could constitute an invasion of privacy ... include where
there has been a serious interference with an individual's home or family life;
an individual has been subjected to unauthorised surveillance; an individual's
correspondence or private written, oral or electronic communication has been
interfered with, misused or disclosed; and sensitive facts relating to an
individual's private life have been disclosed" (74.119)

Interviews published in The Australian itself have disclosed that "the
recommendation to establish a legal right to privacy [is] not just about the
media" and "[the ALRC] took pains to emphasis [sic] the media were not a
particular target for the recommended course of action for a serious invasion
of privacy" (Rout & Parnell, 26 July).

As everyone in the debate agrees, the role of the media is rather special.
But the second misrepresentation that has been perpetrated is that there is no
evidence of abuses by the media that need to be addressed. This has been
raised in various forms by various News Corp. reporters, e.g. "neither Mr
O'Connor nor any other minister has been able to cite a case in which the media
breached individuals' privacy ... [O'Connor is] floating hypothetical
examples of how Australian newspapers could invade individuals' privacy,
because he has no real examples" (Anon, 25 July 2011).

Yet the TV show that News Limited loves to hate had no trouble finding
prominent people to use as examples, nominating Lara Bingle, David Campbell,
Candice Falzon, Jess Origliasso, Nick Riewoldt and Sonny Bill Williams. And
that list omitted several others that come quickly to mind, such as Andrew
Ettinghausen, Pauline Hansen and Nicole Kidman, plus myriad tabloid radio and
television programs that have ignored 'the public interest' and pandered to
'what the public might be able to be interested in'.

Media commentator Richard Ackland was in no doubt, as long ago as February,
that the Campbell breach by Channel Seven was alone sufficient to tip the
balance.

A third cluster of unreasonable accusations depict the proposal as being
unsafe in various ways. A particularly egregious misrepresentation is "as the
ALRC has argued previously, the concept of a general tort of privacy is vague
and nebulous" (Stutchbury, 26 July).

The full quotation from the ALRC is "In its later report, Privacy
(ALRC 22), the ALRC declined to recommend the creation of a general tort of
invasion of privacy. In the ALRC's view at that time [1983], `such a tort
would be too vague and nebulous'" (74.10). Stutchbury has tele-ported a
statement across a 28-year gap to provide spurious support to his contention.

Further, as pointed out in a blog-entry by barrister Peter Clarke [not known to
be a relative], Stutchbury justified his argument by distorting comments by a
Chief Justice.

The ALRC's proposal was first depicted as 'unreasonable': "It would be better
if the media worked with government to help propose a reasonable law, with
robust mechanisms to allow for the full and proper protection of the public
interest" (Day, 25 July). Then the proposal was lambasted as being "an
extremist 'tort of invasion of privacy'" and part of "an extremist rights
agenda" (Stutchbury, 26 July).

All of this appears to be intended to justify a claim that the tort would
seriously harm freedom of the press. But in fact, the ALRC took great care to
identify the competing interests, to place great weight on freedom of the
press, to place the onus of proof very firmly on the claimant, and to structure
multiple, high hurdles.

The ALRC settled for "characterisation of the cause of action as a 'serious
invasion of privacy'" (74.136) that is "highly offensive to a reasonable person
of ordinary sensibilities" (74.135). How high the bar is set is indicated by
the example that "disclosure [by a medical practitioner] of the claimant's HIV
status will not be 'highly offensive" (74.131). The design of the ALRC's tort
ensures that only the most extreme or repeated actions will result in a case
even getting of the ground. How can even the term 'unreasonable' be justified,
let alone the highly pejorative tag 'extremist'??

But perhaps the prize for the most blatant misrepresentation should go to
The Australian's Legal Affairs Editor (Merritt, 26 July): "The inclusion of a
public interest defence will allow the media to publish material that would
otherwise be a breach of privacy so long as it concerns a matter that is in the
public interest". So the implication is clearly conveyed that the ALRC's
proposal does not include a 'public interest defence'. That impression is
reinforced by "The only defences under the ALRC scheme would have enabled the
media to avoid liability if it published private material while relying on a
legal right such as privilege".

Even the minuscule number of people familiar with this small segment within the
ALRC's lengthy Report would have easily fallen for this one.

It's technically true that the list of 'defences to the statutory cause of
action' does not include 'the public interest'. But that expression is a term
of art in this context. The ALRC explained that "Rather than attempt to
protect other rights through a defence, the ALRC agrees it would be better in
principle and in practice to add an additional element to the cause of action
for a serious invasion of privacy. This would ensure that privacy interests are
not privileged over other rights and interests" (74.147).

That explanation is difficult to overlook, because it is repeated in the
discussion of the defences: "the ALRC considers that the defence of disclosure
in the public interest or fair comment on a matter of public interest should
form part of the elements of the cause of action" (74.170).

In short, the claimant can't establish that they have a case unless they
convince the court that "the claimant's privacy outweighs other matters of
public interest (including the interest of the public to be informed about
matters of public concern and the public interest in allowing freedom of
expression)" (Recommendation 74-2). The 'defence' that Merritt pretended
doesn't exist is there alright - up front, rather than down the back end.

The privacy right of action has been a long time coming. The need for a
tort has been discussed in learned reports and articles since the 1960s. The
ALRC proposed a tort of 'unfair publication' in 1979 (para. 74.7). In 1987,
the [then Liberal-dominated] Senate passed an amendment to the Privacy Bill to
provide for a (limited) action for breach of privacy (74.11); but it was
rejected by the [then Labor-dominated] House of Representatives.

Moreover, International Covenant on Civil and Political Rights (ICCPR) - which
Australia signed in 1972 and ratified in 1980 - arguably obligates us to
provide legislative protections for all forms of privacy, not just data privacy
(74.14), and a tort of this kind is one straightforward way to achieve some
level of compliance. I wish I, as an individual, could deliver on my
obligations over 30 years late.

The media as a whole have got to get over their desperate paranoia. Your worst
enemies aren't actually out to get you. We all believe in the freedom of the
press as much as you do.

And 'The Australian', of all of the News Ltd outlets in Australia, needs to
stop compromising broadsheet standards and get back to the quality journalism
that newspaper devotees expect. (We're still here, still reading).

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From the site's beginnings in August 1994 until February 2009, the infrastructure was provided by the Australian National University. During that time, the site accumulated close to 30 million hits. It passed 50 million in early 2015.